[MassHistPres] S1428/H4331 Historic Commissions

[Jessica Rudden-Dube]

Preservation Mass was not notified of the filing of this bill nor its
provisions, and was not involved with the writing or filing of it. An
initial discussion or survey from years ago does not in any manner
constitute co-authoring, nor does it confer support for this proposed
legislation.


*Jessica Rudden-Dube*
Executive Director
Preservation Massachusetts
(617)723-3383 x103
jruddendube at preservationmass.org
www.preservationmass.org
6 Main Street Extension, Suite 613
Plymouth, MA 02360





On Sat, Jun 14, 2025 at 7:19 PM Russel Feldman via MassHistPres <
masshistpres at cs.umb.edu> wrote:

> Thanks for your detailed comments, Mr. Eigerman.  Allow us to review this;
> we'll be back to you once we have a chance to examine your concerns in
> equal detail.
> Russ Feldman
>
>
> ------------------------------
> *From:* MassHistPres <masshistpres-bounces at cs.umb.edu> on behalf of Jared
> Eigerman via MassHistPres <masshistpres at cs.umb.edu>
> *Sent:* Saturday, June 14, 2025 4:28 PM
> *To:* Dennis De Witt <dennis.j.dewitt at gmail.com>
> *Cc:* MHC MHC listserve <masshistpres at cs.umb.edu>
> *Subject:* Re: [MassHistPres] S1428/H4331 Historic Commissions
>
> Dear Mr. Feldman:
>
>
>
> Thank you for sending the AIA’s June 9 submittal to the Legislature about
> HD 4331/SB 1428. I am emailing the listserv because this is where I first
> learned about the legislation just two days ago, and yet committee hearings
> have already begun. Please note that the Deputy State Historic Preservation
> Officer wrote us that MHC had *not* been consulted. I am concerned that
> writing the AIA back privately will be too little, too late.
>
>
>
> Even if the AIA does not itself intend for these bills to preempt the
> independent legal authority of Massachusetts cities and towns to regulate
> in the area of historic preservation. the _text_ of the bills read that
> way. It is the intent of the Legislature that will matter to a reviewing
> court, not that of the AIA. To effectuate legislative intent, courts start
> with the “plain language” of the statute, and may never reach “legislative
> history,” like AIA’s June 9 letter. (See *Six Bros., Inc. v. Brookline*,
> 493 Mass. 616, 622 (2024).)
>
>
>
> Unlike AIA’s June 9 letter or your email today, the bills themselves do
> not say that their purpose is to “strengthen the statutory authority and
> effectiveness” of local historic districts, nor to offer a “toolkit of best
> practices. Rather, their stated purpose is to create *uniformity* in the
> Commonwealth.
>
>
>
> Many Massachusetts localities regulate in the area of historic
> preservation without using MGL Chapter 40C, and through boards other than
> historic districts created under MGL Chapter 40. Here in Newburyport, for
> example, it has been politically impossible to form an LHD for our 1811-era
> downtown, with major efforts failing in the early 1970s and then again 40
> years later. Instead, using our home-rule powers, alterations to those
> downtown buildings listed as contributory to a National Register district
> formed in 1984 are reviewed by our Planning Board following Chapter 40A
> (Zoning Act) procedures.
>
>
>
> (See *Opinion of the Justices*, 333 Mass. 773 (1955) [it is within power
> of Legislature to determine that community should be “beautiful” as well as
> healthy]; *Opinion of the Justices to the Senate*, 333 Mass. 783
> [aesthetic controls were valid means to protect Nantucket economy] (1955); *CHR
> Gen’l, Inc. v. City of Newton*, 387 Mass. 351, 356 (1982) [zoning is
> independent municipal power within Home Rule Amendment’s broad grant of
> authority]; *Fabiano v. City of Boston*, 49 Mass. App. Ct. 281, 286
> (2000) [“We reject the plaintiffs' contention … that the preservation of
> historic architecture is not a permissible factor in zoning.”]; *c.f.*,
> Sturbridge Zoning Ord. s. 300-4.9 [purpose of Historic Commercial District
> includes maintaining integrity of character of National Register Historic
> District].)
>
>
>
> I believe that the City of Cambridge, among others, also has non-MGL
> Chapter 40C historic districts, administered by commissions that are not
> necessarily formed under MGL Chapter 40, Section 8D [“A city or town which
> accepts this section *may* establish an historical commission…”]. (See *Lovequist
> v. Con. Comm. of Town of Dennis*, 379 Mass. 7, 12 (1979) [“We do not
> consider all ordinances or by-laws that regulate land use to be zoning
> laws….”’; *c.f.*, Northampton Munic. Code c. 156-1 [Central Business and
> West Street Architecture].)
>
>
>
> If the bills pass as written, reviewing courts will have to decide whether
> they * impliedly preempt* local laws that regulate in the area of
> historic preservation in ways that differ from the “uniform process[es]’”
> that will be newly specified in MGL Chapters 40 and 40C:
>
>
>
> “[The] preemptive intent may be stated expressly by the Legislature, or it
> may be implied where “the purpose of the statute cannot be achieved in the
> face of the local [rule].”… (*‘**[t]he question...is whether the local
> enactment will clearly frustrate a statutory purpose*’).”
>
>
>
> (*Six Bros., Inc.*, *supra*, 493 Mass. at p. 624.)
>
>
>
> As to local historical *commissions*, MGL Chapter 40, Section 8D would
> newly provide that “The further purpose of this section is to establish a
> *uniform* process for reviewing requests to demolish or relocate
> significant buildings…” What happens if local law authorizes a non-MGL
> Chapter 40, Section 8D, historical commission to review such requests?
> Could not a court determine that that frustrates a “uniform process?”
>
>
>
> As to local historic *districts*, MGL Chapter 40C, Section 2 would newly
> provide that:
>
>
>
> ·       Chapter 40C seeks to preserve and protect historic resources by
> establishing a “*uniform* process … for historic district commissions to
> review and rule on applications to alter buildings located within [local
> historic] districts.”
>
>
>
> ·       “The further purpose of Chapter 40C is to establish a *uniform* process
> for reviewing requests to demolish or relocate significant buildings.”
>
>
>
> Say there is an LHD commission with jurisdiction, what happens if that
> commission wants to deny – instead of merely *delay* -- issuance of a
> demolition permit?  Could not a court determine that that, too, frustrates
> the stated purpose of a “uniform process?”
>
>
>
> The SJC’s recent *Six Bros., Inc. *case is about the Commonwealth’s 2018
> Tobacco Act. There, the Legislature wrote out exactly what it intended to
> preempt:
>
>
>
> “This act shall preempt, supersede or nullify any inconsistent, contrary
> or conflicting state or local law relating to the minimum sales age to
> purchase tobacco products…. This act shall not otherwise preempt the
> authority of any city or town to enact any ordinance, by-law or any fire,
> health or safety regulation that limits or prohibits the purchase of
> tobacco products.”
>
>
>
> (*Six Bros., Inc. v. Brookline*, *supra*, 493 Mass. at p. 624.)
>
>
>
> But HD 4331/SB 1428 do not include any language like that. Instead, they
> speak of the Legislature’s intention to create “uniform process[es].”
>  Accordingly, reviewing courts could well determine that by passing HD
> 4331/SB 1428 the Legislature intended to eliminate the power of cities and
> towns to protect historic resources *except* by using the uniform
> processes described in Chapters 40 and 40C, as amended.
>
>
>
> To many of us, that makes HD 4331/SB 1428 far more dangerous than they are
> helpful.
>
>
>
> If the bills are simply meant to create *model* procedures for localities
> to use at their *option*, then at the very least the bills must provide
> that expressly. Right now, they do not.
>
>
>
> -          Jared Eigerman, JD, MCP, Newburyport, Mass.
>
>
>
> P.S. I’m just writing as a citizen. I do not have any client with an
> interest in this matter.
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>
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